When the State Discriminates

Author Carlos A. Ball chronicles the stories of LGBT parents who have fundamentally changed how American law defines and regulates parenthood in this excerpt from The Right to Be Parents: LGBT Families and the Transformation of Parenthood.

BY Carlos A. Ball

September 27 2012 4:00 AM ET

Since the government had not objected to the granting of the adoption petitions, there was no one to appeal Judge Alprin’s ruling in Laura and Victoria’s case. A possible appellate opinion on the question of second-parent adoption was a double-edged sword for LGBT rights advocates in the nation’s capital. On the one hand, if the District’s Court of Appeals were to approve such adoptions, trial judges in the city would be required to evaluate second-parent adoption petitions as they did all other adoption petitions, that is, by keeping the best interests of the children in mind. (As it stood now, although other trial judges could follow Alprin’s ruling if they found his legal analysis persuasive, they were not required to do so.) On the other hand, a Court of Appeals’ decision prohibiting second-parent adoptions would mean that such adoptions would not be available to any same-sex couples living in the District unless — and this was highly unlikely in the early 1990s — the legislature (either Congress or the City Council) got involved by amending the statute to make the adoptions possible.

The opportunity for appellate review arose in 1994 when District of Columbia trial court Judge Susan Winfield ruled that the members of a gay couple could not both be recognized as the legal parents of a child whom they were jointly raising.

Bruce Moffit and Mark Dalton, both life-long Catholics in their late twenties, met in 1990 at a church service sponsored by Dignity, an LGBT Catholic organization. After dating for a few months, they moved in together and began thinking about becoming parents. In 1991, the couple placed an advertisement in a newspaper looking to adopt, an ad that was read by Sylvia Leffs, a young African-American woman who was several months pregnant. Sylvia arranged to meet with the two white gay men and liked them immediately. After several meetings, she told them that she would give them her child to raise after she gave birth. She also moved in with Bruce and Mark for the last few months of her pregnancy because she was not getting along with her mother at home.

Sylvia gave birth to a baby girl she named Hillary in August 1991. Three months later, she signed a form consenting to the adoption of her child. (Hillary’s biological father could not be found and his consent was waived.) A day after that, Bruce filed a petition in court to adopt the girl. After a favorable recommendation by the Department of Human Services, Judge Winfield in 1993 granted the adoption knowing that Hillary would be raised by both Bruce and his partner Mark in their home.

Since the gay couple had always intended to raise a child together, they jointly filed a petition to adopt Hillary two months after Judge Winfield granted Bruce’s petition. But this time around, the judge denied the petition.

Judge Winfield recognized that the second-parent adoption would be in the girl’s best interests. She also acknowledged that Hillary would continue to live with, and be cared by, the two men regardless of whether she granted the adoption petition. But in her view, the adoption statute did not permit two unmarried individuals to adopt the same child.

While Judge Alprin had held that the statute’s failure to explicitly address whether an unmarried couple could adopt together meant that such an adoption was not prohibited by law, Judge Winfield reached the opposite conclusion by holding that the absence of an explicit statutory authorization meant that the adoption petition could not be granted. Winfield reasoned that since adoption had not existed at common law and was entirely a legislative creation, the adoption law had to be read narrowly. Otherwise, she believed that the court, in effect, would be improperly legislating by expanding the scope of the statute. She added that “the Legislature could not have foreseen the occurrence of the societal changes which have drastically altered our notions of what constitutes a ‘normal’ family. To hold that the Adoption Code provides a remedy for petitioners’ problem is to impute an intent to the Legislature that it is highly unlikely to have held.”

When Bruce and Mark decided to appeal Winfield’s ruling to the Court of Appeals in 1994, they turned to Polikoff to handle their case. In her brief to the appellate court, Polikoff made the same arguments that she had successfully raised more than three years earlier in Laura Solomon and Victoria Lane’s case. In doing so, she urged the court to reject Judge Winfield’s narrow and formalistic interpretation of the statute, one that required that the legislature have specifically contemplated the issue of second-parent adoptions before Bruce and Mark could both become Hillary’s legal parents. Polikoff asked the court to instead focus on the statute’s overarching purpose, which was to advance the best interests of the children.

The appellate court did precisely that a few months later when it issued a 30-page opinion rejecting Winfield’s restrictive interpretation of the statute. Noting that it had in the past called for a liberal construction of the adoption law in order to effectuate its purposes, the court held that the appropriate approach was to interpret the statute in ways that would advance Hillary’s best interests. Those interests, the court concluded, would not be promoted through the judicial imposition — in the absence of an explicit statutory provision — of a rule barring all unmarried couples like Bruce and Mark from adopting a child like Hillary. Instead, Hillary’s welfare would be better promoted if the law recognized what was already in fact that case: that the young girl had two fathers who cared for her and who loved her very much.

Bruce and Mark’s victory before the Court of Appeals caught the attention of conservative members of Congress, the body that has ultimate legislative authority over the District of Columbia. Beginning in 1995, some members of the House of Representatives tried to attach an amendment to the District’s appropriation bill that would prohibit unmarried couples from adopting together. For several years in a row, Polikoff worked with the Human Rights Campaign and other LGBT rights groups to defeat the amendment. Those efforts helped to keep it from being voted out of committee and onto the floor of the House.

But in 1999, amendment supporters brought the measure directly to the floor and it passed the House. The Clinton Administration, however, made it clear behind the scenes that it was opposed to the provision, and it was dropped from the final District appropriation bill when the House’s version was reconciled with that of the Senate’s. This meant that same-sex couples raising children together in the nation’s capital were able to continue to have the option of strengthening and protecting their families through second-parent adoptions.